The Beginnings of torture as legal punishment
Historically the torture was the way to make confess lawbreakers and malefactors but also innocent people were tortured and mistreated. We can think about Roman Empire, Middle Ages and Inquisition Tribunals and we have the clear idea that Middle Ages was the most important age where the torture was practised. Usually torture and death came from private obligations as a way of revenge or to pay off a debt. The term Talion Law, lex talionis, includes a legal principle of retributive justice where the punishment imposed rule is identical to the action committed by the criminal. So it is not an equivalent penalty but identical. The best-known expression of the law of retaliation is “eye for an eye, tooth for a tooth” in the Old Testament Exodus.
The Law of the XII Tables of Rome combines in Table VIII rules inspired in the retaliation. This mixture is usually attributed to the legal transition moment in Rome when the first legal body appeared. Historically, it is the first attempt to establish proportionality between crime damage taken and damage done to the punishment, making it the first limit to revenge. Even it seems hard the rule put limits to the revenge.
If we have a look into our community, as Tomas y Valiente explains in his extended publications, in Catalonia and Aragon the torture was prohibited before Civil Courts. Lorenzo Matheu i Sanz (1618-1680) explained that in Valencia, even allowed, the Courts didn’t apply torture because it was extremely dangerous and not always made the reo confess. So we can see a light of sensibility in the past even the Inquisition Courts were allowed to apply degrees of torture to their detainees.
In Spain, the 1978 Constitution explicitly states in Article 15 “no one shall be subjected to torture or to cruel, inhuman or degrading treatment”. Also the Spanish Penal Code, under the 1988 reform provides increased penalties for crimes of this nature and extends the cases of torture including insults, threats and coercion, which are part of what has been called psychological torture. Unfortunately, there is still a long way to go in our country and in other Western countries as domestic abuse, for example, remain a constant in our societies.
Rights and Freedoms: Live and Dignity
European Union Directives and considerations
The use of torture has been gradually abolished in all countries during the eighteenth and nineteenth centuries, being convicted of the Declaration of Human Rights of 1948. Unfortunately, there are still many countries, even in their constitutions expressly forbid it.
In December of 2010 was the 10th birthday of the approval of European Union about the Charter of Fundamental Rights to defend the citizens’ rights.
Lisbon Treaty gives to the Charter the degree of primary source and gives importance to the liberty, solidarity and security to each one of the member states. The European Union has guidelines to provide an operational tool for fight against torture and cruel, inhuman or degrading treatment under its external relations among Member States and other states what includes and active support to the implementation of international tools and agencies. It must be part within the framework in the pillar of Common Foreign and Security Policy (CFSP).
The EU aims to third countries that prohibit torture and ill-treatment and to meet their obligations. To ensure the development of international law, the EU will take the necessary measures as political dialogue, bilateral and multilateral cooperation and internal rules to guarantee conditions of detention conforming to human rights and prohibit secret detention and to establish procedures for responding to accusations of torture, ensure compensation, establish and build up national institutions to ensure effective training of professionals in such matters. The Union will work together with the UN, the Council of Europe and the Organization for Security and Cooperation in Europe (OSCE).
So, the Convention is not the only legal source about rights and freedoms and the Charter establishes that each citizen has the right to live and dignity what automatically excludes the punishment with death, torture and slavery of any human.
In the scope of European Union and Europe in general, the article 3 of European Convention of Human Rights has been challenged in many cases trying to find whether the Strasburg Court has overextend in the interpretation of its scope and the application in the specific cases.
Torture: Methods, extension and approaches
To start with we should take into account what the article strictly says: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. This article is one of the briefest provisions of the Convention.
The truth is that initially the Court had a restrictive and overwhelming view about the definition of what torture consisted. They held that other practices out of the strict scope of torture as sleep deprivation, subjecting individual to intense noise or to stand against a wall with their limbs did not constitute a torture. The Court’s decisions are all the time between the assertiveness and restraint but it doesn’t mean that the pendulum in that case has necessarily gone to an excessive degree.
The decisions of the courts have to evolve accordingly with the social changes as was considered in Selmouni Case when the Court established that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies as one of the most important values.
Nevertheless the Court has gone further after Aksoy v. Turkey Case and it seems to be opener to include treatments characterized as inhuman or degrading. Furthermore they established five techniques considered causes of degrading treatment after the Ireland v. United Kingdom in 1978 jointly with the torture; stand against the wall, exposition to high noises, forbidding sleeping, low alimentation and deprivation of sense. A wide sort of cases appoints that different behaviours are considered within the article and then potential similar actions capable to breach it.
These conducts may be determined on the basis of objective and subjective test in relation with the substantive and procedural aspects, because the breach could happen because an action or omission as a result of negligence in providing adequate carefulness. It was in Soering Case that the Court added that judgment may depends on all the circumstances of the case, such as the nature and context of the treatment or punishment, the manner and method of its execution. So, the subjective decision of judges has to be done based on objective analysis in each case, as it is supposed to be done the Courts’ work.
Article 3 bans the torture and inhuman or degrading treatment or punishment as we’ve said above. In the Ireland v. UK suspected terrorists in Northern Ireland were imprisoned and subjected to harsh interrogation techniques such as beatings, wall-standing, hooding, noise, sleep-deprivation, and deprivation of food and drink.
There exists a theory called “ticking time bomb scenario” that is used to discuss whether torture against a terrorist detained can be reasonably justified even the state doesn’t allow the torture legally to get a confession.
First of all the European Court concluded that the use of these techniques had led to physical and mental suffering, but weren’t not severe enough to consider as torture. But, however, it was denigrate for the human dignity and UK was in breach of such article of the Convention. An important dissent was made by Judge Sir Gerald Fitzmaurice in that case.
He really considered that those techniques used by the UK government were truly inhuman treatment because it was no other way to describe “kicking a man in the groin” and it has remarked by the jurisprudence the absolute scope of that article.
Moreover the Court disposed in Greek Case that the behaviours forbidden by the article have to be categorized in five elements and the breaking of them will develop legal implications. Those elements are torture, inhuman, degrading, treatment and punishment.
Consequently it could seem that are no exceptions or limitations on this right because we can see that the European Court of Human rights has held and included that the provision would be applied also in cases of severe police violence and poor conditions in detention and also the protection of the same right outside the state when the individual has been extradited (or is going to be extradited).
It means that the extradition cannot suppose a degrading treatment or punishment in the recipient state and if it would be the case, the state is obliged to retain the individual without the deportation. Moreover in some occasions the Strasburg Court has punished states because police violence and because they could use information to clarify the facts and they didn’t do it for example by lacks or irregularities in medical dossiers. As it was held in the case of ONU v. Spain  – Beristain v. Spain  “The ECHR considered that the Spanish justice rejected proves that would help to clarify the facts.” Is up to the state to provide an explanation for the injuries to a detainee if he was healthier before the detention otherwise it could be considered a breach of the article 3 of the Convention.
Furthermore even the expansion of the article involving prison condition and medical uses, the mandate is not infinite. It has limits that have been made by the courts and their judgments related with the exception included in the article 2 and the test of necessity. Prevents illegal violence but in an extreme situation it could be required from the authorities to act with strength according with the necessity.
But there is a tricky assumption about the article 3 included in the article 15.2 of the Convention (about derogating provisions) should prevail in times of war or other public emergencies that could attempt to the nation safety. It cannot be overridden in any case. Also differently of other rights and liberties In the Convention, this does not permit limitations by the law in any circumstance even reason of safety, public order and other causes. Nonetheless, use of force in detention therefore has to be applied with the utmost restriction, and only when it is strictly necessary for the maintenance of security and order within the institution or when personal safety is threatened. It makes that the Court has to analyse case-by-case applying the reasonable tests as principles of proportionality, justifiability and degree of suffering.
Widely in the Vilvarajah 1991 case, we can see that the Court obliges itself to make a rigorous exam and scrutiny of the maltreatment existence in breach of article 3 according with the absolute character of this provision and under the reason that is one of the most important and fundamental value of the societies within the European Council.
The limits are within the appreciation of the degree of suffering by the Courts who have to check if the suffering was enough to be considered torture or denigrate punishment not in permit or forbid the actions. Then the commission and the courts should establish the different categories of the torture or ill-treatment taking into account the nature and the context of punishment and the manner and methods of its execution. That includes take into account parameters as the age, weight and other objective characters of the individual to make the appreciation of the suffering degree.
Conclusions and observations
From my point of view, but not farther than I can discern, the Court in addressing all that cases has set out the scope of the Article 3. The Court is making a rigorous analysis in each case using the test that itself has created to scrutinize thoughtfully. Therefore from my perspective it has not gone to an excessive degree and I agree with the Evrigenis dissent that held that nowadays there are proceedings to produce sufferings within a modern system of oppression.
It is not necessary that the torture supposes physic violence. It could be applied by “subtle” techniques prepared in laboratories and known as scientific methods far from traditional physical damages.
In the case was held that even under “scientific methods” that not means less aggressive to the human dignity because they could cause the same deprivation of senses for example nulling the own will. He argued that the case was giving a definition without differentiate the technologically advanced tortures that would be achievable within the purpose of ECHR.
The judge Matscher added that the torture has to be understood as a systematic, calculated and prolonged treatment of damages in a determinate intensity with the finality to get violently the confession or to oblige any action that within own full faculties, the individual wouldn’t. Then the Court, taking into account the absolute character of the article, has just to apply the suffering test and analyse the duration, physical and mental effects, the state of health of the victim and the manner and methods of its execution. The Court is just doing its work with its tools considering all that factors involved in the matters concerned although the inevitable margin of discretion that the interpretation of any law supposes.
It only might interpret the provision and relate it with the facts establishing the relation between the acts and the results to make a judgment under the definition of each term. Any action by the authorities that could cause a physical or mental damage to coerce an individual or a detainee to interfere in the confession may be considered an inhuman treated in breach of article 3 of the ECHR.
If we take in consideration what said above about new techniques of torture or techniques to get confessions, is obviously that the Strasburg Court should expand the scope of the definition of what are maltreatments, inhuman punishments but that doesn’t mean that has arrived to an excessive degree of protection.
As we said above, Middle Ages were the age of the torturers but we can demystify the inquisitors because, in later stages, have been much more effective lasted technology of the time to create terror instruments and mass destruction. Newer methods of torture and death, such as electricity, chemicals, drugs, and drugs, the psychological pressure … avoid marks on the body, but not the destruction of the human being tortured. Various organizations, such as Amnesty International and ACAT are fighting and denouncing torture to countries that practice it.
Judicial authorities, as the Court is, have the tools to offer the effectiveness to the protection of such right from the forbidden behaviours to fill the gaps that are in the legal systems. The jurisprudence has to take with determination the minimum conditions of the article 3 and use the good fair in its applications because the dignity in one of the most important value of the Human Rights. And what the Court has done is to set up in detail on the scope of the defence for the rights provided by the Convention what the state should do to fulfil and ensure that fundamental rights provided in it.
To finish I’d add that interpretation is dynamic being that society is moving and with that the expectancies and the conception of morals and values. What the Court does is to reflect those changes that come about over time. But nonetheless we must take off the band of our eyes and we will arrive to a disappointing conclusion: torture exists since the world began, and unfortunately there still exists; we only have to look around us.
To finish and to give something to think about I let a paragraph written by the Coordinator of Torture Prevention the last 8 of august 2012 about the death of Juan Pablo Torrioja under police custody. It summarises in a brief lines limits, causes and other aspects of liberty deprivation and physical maltreatments:
It is significantly concerned that during the 2012 have doubled the number of deaths in custody in connection with last year: this really calls into question the effectiveness of the obligation of the State when ensure the physical and psychological integrity of all persons in a situation of deprivation of liberty.
In the investigation of the death of Juan Pablo there are aspects not clarified what questions the official story and reveals a possible negligence in the process of custody, taking 19 minutes that passed until he detected the attempt suicide. In turn, note that the incomprehensible errors and unjustified delays in informing the family and the lack of sensitivity shown by the parties involved have raised even the feeling of impunity and the perception of opacity.
The only alternative is to prompt an investigation, rigorous and effective, as recommended the international organisms for the promotion and protection of human rights, involving lawyers in the family. An investigation that clears all doubt and to ensure transparency of information not only required, but essential to the seriousness of events that ended with the death of Juan Pablo Torrioja. Before the deficiencies identified in the process of custody information, it is needed rigor and necessary to reject any attempt that seeks to minimize defamatory death in police custody of a man who came alive in the police. The Coordinator is openly available to the family, who moved her condolences and solidarity to achieve these goals.
It makes us to consider that even, hopefully, in a less cruel way, the state entities and other powerful ones still apply, against detainees, an abuse of such power conferred to protect the citizens. Coaction and coercion are present in the system against delinquency in a different ways depending on the state that we focus the attention but paradoxically, some of the conducts realized become aggressive to the security and to the desired aims about live and human dignity. So, it is fundamental to have Courts, specifically the ECHR, working in matters involving article 3 of the European Convention and Human Rights to determine in each case the degree of punishment and the lawfulness of detainers actions.